This Bill enacts in
the Commonwealth Criminal Code a specific Commonwealth torture
offence which would operate concurrently with existing offences in
State and Territory criminal laws. The Bill also abolishes
the death penalty throughout Australia, by amending the Death
Penalty Abolition Act to apply to State criminal laws.

These measures are
further described below.

PURPOSE

The purpose of Schedule 1 is to replace the existing offence of
torture in the Crimes (Torture) Act 1988 (Cth) (the 1988
Act) with a new offence in the Criminal Code. The new offence
is intended to fulfil more clearly and explicitly Australia’s
obligations under the United Nations (UN) Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (the Convention). Australia signed the Convention on 10
December 1985, and ratified it on 8 August 1989.

As a party to the United Nations Convention Against Torture,
Australia must ensure that all acts of torture are offences under
domestic criminal law. Australia meets this obligation, as
acts falling within the Convention’s definition of torture
are offences under State and Territory criminal laws. These
acts include the infliction of bodily harm, murder, manslaughter,
assault and other offences against the person. Also, the 1988
Act implements Australia’s obligations under the Convention
to extend Australia’s jurisdiction to persons suspected of
having committed acts of torture outside Australia. The 1988
Act criminalises acts of torture committed outside Australia, only
when committed by Australian citizens or other persons who are
subsequently present in Australia. Acts of torture that are
committed anywhere in the world during the course of an armed
conflict or as a crime against humanity are currently criminalised
under the Criminal Code Act.

In recent years, the UN Committee Against Torture has called on
nations to enact a specific torture offence. In its
Concluding Observations on Australia, issued in May 2008, the UN
Committee Against Torture recommended that Australia enact a
specific offence of torture at the federal level.

Mindful of the Committee’s recommendation, the Government is
enacting a new offence of torture in the Criminal Code, which will
criminalise acts of torture committed both within and outside
Australia. As the new offence will result in the redundancy
of the 1988 Act, the 1988 Act will be repealed. Giving the
offence extraterritorial application is intended to reflect a key
aim of the Convention, which is

to end impunity for torture globally. In enacting such an
offence, the intention is to demonstrate the Government’s
condemnation of torture in all circumstances.

The offence is intended to operate concurrently with existing State
and Territory offences. For this reason, Schedule 1 makes
clear that the enactment of the new offence is not intended to
exclude or limit the concurrent operation of any other law of the
Commonwealth or any law of a State or Territory.

Although the new offence of torture applies to public officials
both within and outside Australia, it is not anticipated to affect
legitimate law enforcement and intelligence-gathering
activities routinely carried out by federal, State and Territory
Government agencies in the course of their duties.

The purpose of Schedule 2 is to extend the application of the
current prohibition on the death penalty to State laws (in addition
to Commonwealth, Territory and Imperial criminal laws to which the
Death Penalty Abolition Act already applies). This will
ensure the death penalty cannot be reintroduced anywhere in
Australia. It will thereby safeguard Australia’s
ongoing compliance with the Second Optional Protocol to the International Covenant
on Civil and Political Rights Aiming at the Abolition of the
Death Penalty (to which Australia became a party on 2 October
1990).

Such a comprehensive rejection of capital punishment will also
demonstrate Australia’s commitment to the worldwide
abolitionist movement, and complement Australia’s
international lobbying efforts against the death penalty.

FINANCIAL IMPACT STATEMENT

The amendments in this Bill have no impact on
Government revenue.

NOTES ON
CLAUSES

Clause 1: Short
Title

This clause
provides that when the Bill is enacted, it is to be cited as the
Crimes Legislation Amendment ( Torture Prohibition and
Death Penalty Abolition ) Act 2009 .

Clause 2:
Commencement

This clause sets
out when the various parts of the Act are to commence.

Clause 3:
Schedule(s)

This is a formal
clause that enables the Schedules to amend Acts by including
amendments under the title of the relevant Act.

This Item adds a new Division 274 at the end
of Chapter 8 of the Commonwealth Criminal Code. The Division
is intended to create an offence of torture in the Commonwealth
Criminal Code, which will replace the existing offence of torture
in the Crimes (Torture) Act 1988 (Cth) (the 1988 Act).
As the new offence will result in the redundancy of the 1988 Act,
the 1988 Act will be repealed.

Section 274.1 - Definitions

Section 274.1(1) will make it clear that
references in Division 274 to the Convention refer to the UN
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (the Convention), which was adopted by the
UN General Assembly on 10 December 1984, and which entered
into force on 26 June 1987. Given the ready availability of the
text of the Convention on the Internet, it has not been annexed to
the Bill as it was to the 1988 Act.

Article 1(1) of the Convention provides
that:

For the purposes of
this Convention, torture means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or
a third person has committed or is suspected of having committed,
or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting
in an official capacity. It does not include pain or suffering
arising only from, inherent in or incidental to lawful
sanctions.

Article 1(2) provides that ‘[t]his
article is without prejudice to any international instrument or
national legislation which does or may contain provisions of wider
application.’

The phrase ‘severe physical or mental
pain or suffering’ reflects article 1(1) of the Convention,
which refers to ‘severe pain or suffering, whether physical
or mental’. As indicated in section 274.1(2), the
phrase ‘severe physical or mental pain or suffering’ is
intended to have the same meaning as it has in the
Convention. The requirement that the pain or suffering be
‘severe’ indicates a high threshold.

Paragraph 274.2(1)(a) will use the phrase
‘engage in conduct’ with the definition in subsection
4.1(2) of the Criminal Code in mind. Subsection 4.1(2) of the
Criminal Code provides that ‘conduct’ means ‘an
act, or omission to perform an act or state of affairs’, and
that ‘engage in conduct’ means ‘do an act’
or ‘omit to perform an act’. Although torture is
defined in the Convention as ‘any act by which severe
pain or suffering, whether physical or mental, is intentionally
inflicted…,’ relevant conduct could include deliberate
omissions which could inflict severe pain or suffering such as
denial of nutrition, clothing or medical care.

Paragraph 274.2(1)(b) will list the purposes
for which the relevant conduct must be engaged in if it is to
amount to torture. In summary, these are the purposes of

obtaining information or a confession from the
person or from a third person; punishing the person for an act
which that person or a third person has committed; intimidating or
coercing the person or a third person; for any reason based on
discrimination of any kind; or for a purpose related to one of the
aforementioned purposes. The inclusion in sub-paragraph
274.2(1)(b)(iv) of the phrase ‘for a purpose related to a
purpose mentioned in subparagraph (i), (ii), (iii)’ is
intended to give effect to the phrase ‘for such purposes
as’ in the definition of torture in article 1 of the
Convention, while also balancing the requirement for specificity in
criminal law legislation.

Paragraph 274.2(1)(c) will provide that an
integral component of the offence is the involvement of a public
official or ‘person acting in an official
capacity’. The requirements of paragraph 274.2(1)(c)
will be satisfied whether the person in question actually tortures
the victim, or instigates the act of torture, or consents to or
acquiesces in it. The reference to a person ‘acting in
an official capacity’ is intended to encompass certain
non-State actors who are exercising authority comparable to
government authority. For example, they may belong to a
political organisation exercising de facto authority over a
particular region of a country. Although the Dictionary to
the Criminal Code contains a definition of public official, it is
intended that this paragraph be interpreted according to the
relevant international law, in accordance with subsection
274.1(2). It is envisaged that that the types of officials
listed in the (non-exhaustive) Criminal Code definition would also
be considered public officials under international law, but the
international definition would also encompass, for example, foreign
public officials and some persons exercising
pseudo-governmental authority.

Although the new offence of torture applies to public officials
both within and outside Australia, it does not affect legitimate
law enforcement and intelligence-gathering activities
routinely carried out by federal, State and Territory Government
agencies in the course of their duties.

To establish this offence, the prosecution
would, in accordance with section 5.6 of the Criminal Code, need to
prove beyond reasonable doubt that:

·
the person intentionally inflicted severe pain or suffering,
whether physical or mental, on another (the victim)

·
the person did so intending to obtain information or a confession
from the victim or from a third person, to punish the victim for an
act which he/she or a third person committed, or to intimidate or
coerce the victim or a third person, and

·
did so in the capacity of a public official or acting in an
official capacity or at the instigation, consent or acquiescence of
a public official or person acting in an official capacity.

In the case of 274.2(1)(b) and 274.2(2)(b),
the relevant fault element is ulterior intention. Ulterior
intention is a fault element that exists independently of any
physical element. Ulterior intention focuses on a
defendant’s intention to bring about a particular result and
it is not necessary to prove that the result actually
eventuated. For example, in paragraph 274.2(1)(b)(i) the
prosecution must prove that the defendant intended to engage in
conduct for the purpose of obtaining information or a confession
from a victim or from a third person. The prosecution will
not have to prove that the defendant actually obtained information
or a confession, just that they intended to for that purpose.

Absolute liability will apply to the element
of the offence in paragraph 274.2(1)(c). Paragraph
274.2(1)(c) requires that the perpetrator must be a public
official, or a person acting in an official capacity, or acting at
the instigation, or with the consent or acquiescence, of a public
official or other person acting in an official capacity.

Absolute liability is set out in section 6.2
of the Criminal Code. The effect of applying absolute
liability to an element of an offence means that no fault element
needs to be proved and that the defence of mistake of fact is not
available. Accordingly, if it can be proved that the
defendant was in fact a public official, or was acting at the
instigation, or with the consent or acquiescence, of a public
official, or other person acting in an official capacity, the
prosecution will not be required to prove that the defendant
knew he/she was a public official, or that the defendant
knew that he/she was acting at the instigation, or with the consent
or acquiescence, of a public official or other person acting in an
official capacity.

Absolute liability
is appropriate and required for this element of the offence because
involvement by a public official is a necessary circumstance under
article 1 of the Convention. Furthermore, this element does
not go to the substance or essence of the culpability of the
offence. Strict liability is insufficient in this instance,
because it is inappropriate for a mistake of fact as to the
involvement of a public official to be available as a defence to
torture. This is consistent with Commonwealth criminal law
practice, as described in the Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers.

Under subsection 274.2(2), it will be an
offence for a public official, or person acting in an official
capacity, or a person acting at the instigation, or with the
consent or acquiescence, of a public official or other person
acting in an official capacity, to engage in conduct which inflicts
severe physical or mental pain or suffering on a person, where that
conduct is engaged in for any reason based on discrimination of any
kind.

Section 5.6 of the Criminal Code will apply
automatic fault elements to the physical elements of the offence
set out in paragraphs 274.2(2)(a) and (b).

Subsection 274.2(2) differs from the offence
created by 274.2(1) only in the ulterior intent (purpose of the
torture set out in paragraph 274.2(2)(b)) which must be
proven.

In practice, this means the prosecution will
need to prove beyond reasonable doubt that:

·
a person intentionally inflicted severe pain or suffering, whether
physical or mental, on another (the victim), and

·
intended to engage in that conduct for a discriminatory reason,
and

·
did so in the capacity of a public official or acting in an
official capacity or at the instigation, consent or acquiescence of
a public official or person acting in an official capacity.

Subsection 274.2(3) will provide that absolute
liability applies to paragraphs 274.2(1)(c) and 274.2(2)(c).
The application of absolute liability to these elements of the
offence is described above.

Australia is obliged under article 4(1) of the
Convention to criminalise attempts to commit torture, as well as
complicity or participation in torture. Ancillary offences,
which are defined in Part 2.4, Division 11 of the Criminal Code,
apply automatically to Division 274. The five kinds of
ancillary offences are attempt; complicity and common purpose
(aiding, abetting, counselling or procuring); innocent agency;
incitement, and conspiracy. The fault elements for these
ancillary offences are set out in sections 11.1 to 11.5 of the
Criminal Code. For example, by operation of sections 11.6 and
11.1 of the Criminal Code, an attempt to commit torture will be
punishable as though the torture had been committed, and incitement
to torture or conspiracy to torture will be punishable in
accordance with sections 11.4 and 11.5 of the Criminal Code.
A person who aids, abets, counsels or procures torture—that
is, someone who is complicit in torture—will be taken to have
committed torture and be punishable accordingly, by operation of
section 11.2 of the Criminal Code.

Article 4(2) of the Convention requires that
‘[e]ach State Party shall make these offences punishable by
appropriate penalties which take into account their grave
nature.’ Accordingly, the maximum penalty prescribed
for an offence against this Division is imprisonment for 20
years. This penalty reflects the gravity of the offence of
torture. There are comparable penalties in legislation both
overseas (in the United Kingdom, Canada and New Zealand) and in
Australia (torture offences in Queensland, the Australian Capital
Territory and Norfolk Island, as well as offences of similar
gravity elsewhere in the Commonwealth Criminal Code).

Subsection 274.2(4) is in similar terms to the
1988 Act (paragraph 3(1)(b)), namely that severe pain or suffering
that arises only from, inherent in or incidental to lawful
sanctions that are not inconsistent with the articles of the
International Covenant on Civil and Political Rights does not
constitute torture.

Subsection 274.2(5) will give the offence
Category D extended geographical jurisdiction, as provided for in
section 15.4 of the Criminal Code. That is, the offence
applies:

o whether or not the conduct
constituting the alleged offence occurs in Australia;
and

o whether or not a result of the
conduct constituting the alleged offence occurs in
Australia.

This is intended to ensure the broadest
possible extraterritorial jurisdiction under the Criminal Code for
the present offence, in recognition of the serious nature of the
crime of torture and its widespread condemnation internationally.

Section 274.3 - Prosecutions

Subsection 274.3(1) will require the
Attorney-General’s written consent to commence proceedings if
the conduct constituting the alleged offence of torture occurs
wholly in a foreign country.

Subsection 274.3(2) will require that a
person may be arrested for, charged with, or remanded in custody or
released on bail in connection with an offence under Division 274
before consent to prosecute has been granted.

Subsection 274.3(2) will provide that
subsection 274.3(2) does not prevent an accused person from being
discharged, if the proceedings are not continued within a
reasonable time.

The Attorney-General’s decision in
relation to consent is judicially reviewable under the
Administrative Decisions (Judicial Review) Act 1977
(Cth).

In accordance with articles 2(2) and (3) of
the Convention, neither exceptional circumstances nor orders from a
superior officer will be permitted as a defence under Division
274. This provision mirrors section 11 of the 1988 Act. If,
however, the accused person is convicted of an offence of torture,
the fact that the conduct constituting the offence was done in
exceptional circumstances or under orders from a superior
authority, may be taken into account in determining the proper
sentence.

Section
274.5 - Jurisdiction of State/Territory courts preserved

This provision
ensures that proceedings under Division 274 may be instituted in
State and Territory courts. Its equivalent in the 1988 Act is
section 12.

Section 274.6 - Concurrent operation
intended

This section will provide that Division 274 is
not intended to exclude or limit the concurrent operation of any
other law of the Commonwealth or any law of a State or
Territory.

Acts which would constitute torture are
prohibited under the laws of each State and Territory, although
only a small number of jurisdictions currently have a specific
offence of torture. This provision will ensure that State and
Territory laws can still apply to relevant conduct, if
appropriate.

Section
274.7 - Double jeopardy

This section is intended to prevent
re-prosecution for torture based on the prohibitions on double
jeopardy in the common law and international human rights law.

Part 2
- Other Amendments

Items 2 and 3 - Amendments to section
71.13 of the Criminal Code

These items will omit from Division 71 of the
Criminal Code (Offences against UN and associated personnel) the
reference to torture, as it does not conform to the Convention
definition and has the potential to cause confusion with the
definition of torture in subsections 274.1(1) and (2).

It does not alter the substance of the
aggravated offence in section 71.13(1)(a).

Part 3 - Repeal

Item 4 - The whole of the Act

This Part will repeal the 1988 Act in its
entirety.

Schedule 2 — Amendments
relating to the abolition of the death penalty

This schedule will amend the Death Penalty
Abolition Act 1973 (the 1973 Act).

Item 1 - Title

Item one will amend the long title of the 1973
Act to include a reference to the laws of the States and
Territories, in addition to the existing reference to the laws of
the Commonwealth and ‘other laws in relation to which the
powers of the Parliament extend’ (a reference primarily to
Imperial laws which may still apply in Australia).

The long title will now be as follows:

An Act to abolish Capital Punishment under the
Laws of the Commonwealth, of the States and of the Territories, and
under certain other Laws in relation to which the Powers of the
Parliament extend.

Item 2 - Application

This item will insert a new subsection 3(3)
into the 1973 Act to specify that section 6 of the Act (to be
inserted by item 5) is to apply to State laws.

It will also amend subsection 3(4) to remove
an obsolete reference to pending proceedings.

Item 3 - Liability

This item will amend section 4 of the 1973 Act
to specify that no one is liable to the punishment of death for any
offence in relation to, and in relation to offences under, the laws
of the Commonwealth and of the Territories, and, to the extent to
which the powers of the Parliament permit, in relation to, and in
relation to offences under, Imperial Acts.

Section 4 (together with section 5) will have
the effect of prohibiting a court from sentencing an offender to
death. In effect, it would override any provision of
Commonwealth, Territory or Imperial law which purported to
authorise the death penalty.

Item 4 - Substitution of life

This item will maintain the previous
application of section 5, just as item 3 does for section 4.
Section 5 will provide that if, under a law of the Commonwealth, a
Territory or an Imperial law, ‘a person is liable to the
punishment of death, the reference to the punishment of death shall
be read, construed and applied as if the penalty of imprisonment
for life were substituted for that punishment.’

Item 5 - Imposition

This item will insert a new section 6 into the
1973 Act which applies to all relevant Commonwealth, State,
Territory and Imperial laws. In contrast to section 4, which
is intended to deal with any existing provisions that may provide
for the death penalty, section 6 is intended to prevent the death
penalty from being imposed in the future. That is, section 6 is
intended to prevent the death penalty from being reintroduced into
the law in any Australian jurisdiction, to ensure ongoing
compliance with the Second Optional Protocol to the International
Covenant on Civil and Political Rights.